That’s the one that guarantees freedom from unfettered government snooping, the one that says
government needs probable cause and a warrant before it can search or seize your things.

That guarantee would seem to be ironclad, but we’ve been learning lately that it’s not. Indeed,
maybe we’ve reached the point where the Fourth ought to be marked with an asterisk and followed by
disclaimers in the manner of the announcer who spends 30 seconds extolling the miracle drug and the
next 30 speed-reading its dire side effects:

To wit: “Fourth Amendment not available to black and Hispanic men walking in New York, who may
be stopped and frisked for no discernible reason. Fourth Amendment does not cover black or Hispanic
men driving anywhere, as they be stopped on any pretext of traffic violation and searched for
drugs. Fourth Amendment does not protect library patrons, as the Patriot Act allows the FBI to
search your library records without your knowledge. Fourth Amendment does not apply to anyone using
a telephone, the Internet or email as these communications may be searched by the NSA at any
time."

To those disclaimers, we now add a new one: “Fourth Amendment not effective at the U.S.
border."

Just before New Year’s, you see, federal Judge Edward Korman tossed out a suit stemming from
something that happened to Pascal Abidor, a graduate student who holds dual French and U.S.
citizenship. He was taken off an Amtrak train crossing into New York from Canada in May 2010,
cuffed and detained for hours by U.S. Customs and Border Protection agents. They seized his laptop
and kept it for 11 days.

It seems the computer contained photos of rallies by Hamas, the radical Islamist group, and his
passport indicated travel in the Middle East. Abidor explained that he’s a student of Islamic
studies at McGill University and that he’s researching his doctoral thesis. According to at least
one news report, he’s not even Muslim.

None of this moved the border agents — or the judge. He rejected the suit, brought by the ACLU,
among others, on behalf of Abidor and the National Press Photographers Association, among others,
on grounds the plaintiffs had no standing to bring suit because, he says, the searches are so rare
there is little risk a traveler will be subjected to one.

More jarring, Korman found that even had the suit gone forward, the plaintiffs would have lost
on the merits. It is permissible, he said, for border agents to seize your devices and copy your
files, even without any suspicion of wrongdoing. He questioned whether people really need to carry
devices containing personal or confidential material and said that dealing with a possible search
of such a device is just one of the “inconveniences” a traveler faces.

As it happens, border-control officers already operate under a looser constitutional standard.
They are allowed to conduct warrantless, suspicion-less searches of our bodies and our bags.

But our laptops? Our iPads? These devices are repositories of financial records, health
information, confidential news sources and diaries. Are you required to surrender even the most
intimate stuff of your life and work on the whim of a border agent because he or she doesn’t like
your looks?

Apparently, yes.

It is a sobering reminder — not simply that the law lags the innovations of the Information Age,
not simply that the whole idea of privacy is shrinking like an ice cube in a tea kettle, but also
that if you lard a right with too many “exceptions,” that right becomes impotent. So maybe instead
of counting the places and situations where the Fourth Amendment no longer applies, we should start
counting the ones where it still does.